U.S. Supreme Court

Should federal officers get immunity for lies and beatings? SCOTUS is asked to decide

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Three cert petitions ask the U.S. Supreme Court to rule that federal law enforcement officers and those who serve with them on joint task forces were not entitled to absolute immunity for violating constitutional rights of three people.

The Institute for Justice is asking the court to overturn decisions granting absolute immunity to a federally deputized St. Paul, Minnesota, police officer; to an agent with the Department of Homeland Security; and to federal police in a Veterans Affairs hospital, according to a press release. Two of the cert petitions were filed in August.

The Minnesota case involved an officer accused of locking up three women on false charges after they got into an altercation with a witness in a sex trafficking case. The women, who had called police seeking protection, were charged with intimidating a witness, the New York Times reports. Two of the friends were acquitted, and the case against the third, Hamdi Mohamud, was dismissed.

The St. Paul, Minnesota, officer, who served on a joint task force with federal agents, allegedly lied to protect the witness, the Institute for Justice alleged. In the two other cases, federal officers unlawfully detained a man at gunpoint and beat a man at a Veterans Affairs hospital in an unprovoked attack, according to the Institute for Justice.

A federal statute allows state and local officers to be sued for damages for violating a person’s constitutional rights, but there is no federal law establishing accountability for federal officers.

The Supreme Court held in 1971 in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics that a cause of action for damages against federal officers could be inferred from constitutional provisions.

In Bivens, federal narcotics officers conducted a home search without a warrant, arrested a suspect in front of his family, and strip searched him.

The New York Times explained the differences in immunity. Usually, state and local officers are granted qualified immunity, which shields them from constitutional lawsuits unless they violated a clearly established right. But federal officers—as well as state and local officers who serve jointly with federal officers on task forces—are given absolute immunity unless the suits are authorized by Bivens.

But the Supreme Court has limited the availability of damages suits against federal officers over the years, culminating in Ziglar v. Abbasi in June 2017. The high court ruled in that case that there was no implied right of action allowing suit against federal officials by immigrants who say they were rounded up and illegally detained after the Sept. 11, 2001, terrorist attacks.

Abbasi established a two-part test, according to Mohamud’s cert petition. First, a court determines whether the case is meaningfully different from Bivens. If it does, the court moves to the second step and asks whether there are special factors that counsel against extending Bivens to a new context.

Courts have split on application of the test. Two federal appeals courts that make it difficult to sue are the 5th U.S. Circuit Court of Appeals at New Orleans and the 8th Circuit at St. Louis, which require cases to present the same facts as Bivens to proceed.

In Mohamud’s case, the 8th Circuit said she had not constitutional remedy because the facts didn’t “exactly mirror” Bivens.

The New York Times spoke with Patrick Jaicomo, a lawyer with the Institute for Justice.

“The reductio ad absurdum here is all the defendants in our cases could have intentionally, on camera, shot and killed these people and laughed while they did it, and the courts are saying, ‘Well, sorry, it’s really a policy decision for Congress; we can’t let you sue them,’” Jaicomo told the New York Times.

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